Heke v Police

[2015] NZHC 635

IN THE HIGH COURTOF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000010 [2015] NZHC 635

BETWEEN

REAGAN MANO JOHN HEKE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 March 2015
Appearances:	J A Westgate for Appellant R P Bates for Respondent
Judgment:	31 March 2015

ORAL JUDGMENT OF GENDALL J

Introduction and background

[1]      This is an appeal against sentence.

[2]      On  23  January  2015,  Judge  Phillips  in  the  District  Court  sentenced  the appellant on charges outlined below to a total of 200 hours’ community work and nine months’ supervision.   In addition he imposed the special condition that the appellant undertake and complete alcohol and drug assessment and any counselling or treatment in relation to drug abuse as may be directed by the appellant’s probation

officer.1  This sentence of community work was imposed on the lead charge, being

possession of utensils for methamphetamine consumption, and was deemed by the

Judge  to  cover  the  appellant’s  overall  culpability.  Judge  Phillips  imposed  the

1      Police v Heke [2015] NZDC 3370 at [5].

HEKE v NEW ZEALAND POLICE [2015] NZHC 635 [31 March 2015]

sentence of supervision  and special conditions to address what he said was the

appellant’s issues of addiction and abuse.

[3]      Regarding  the  auxiliary  offences,  Judge  Phillips  imposed  the  following sentences, all to run concurrently:

(a)      possession of methamphetamine: 60 hours’ community work;

(b)      obstructing a police officer: 60 hours’ community work;

(c)      possession of cannabis: 40 hours’ community work;

(d)      possession of psilocybin: 40 hours’ community work; and

(e)      possession of testosterone: 40 hours’ community work.

[4]      The Judge also ordered  the destruction of  first, all drug instruments and paraphernalia seized during the search, and secondly, all drugs that were seized.

[5]      After listing the maximum sentences for each offence and the facts giving rise to these charges, Judge Phillips stated:

[4]       … You have an appalling history but it does not involve any other convictions under the Misuse of Drugs Act 1975.  You have pleaded guilty immediately.  I accept there would be a high public concern about a person having the variety of drugs and manufacturing equipment to use those drugs at a house in Dunedin.  I take into account your attitude and what occurred during the course of the search and the wide-ranging drugs that were found in your possession.

[5]       I consider overall your culpability can be dealt to by the imposition of 200 hours of community work and I impose that, as I said, on the head or lead charge, being possession of the pipe.  However, in my view, there would also be drug addiction or abuse issues.  …

[6]      The  appellant  now  appeals  on  the  basis  that  the  sentence  imposed  is manifestly excessive.

Jurisdiction

[7]      Mr Heke is able to appeal the sentence imposed as of right.2   As first appeal Court, this Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed and that a different sentence should be imposed.3    In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act

1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).4

Submissions

Appellant

[8]      Counsel for the appellant, Mr Westgate, accepts that the Crown is correct that on  the  charges  in  question  the  appellant  faced  a  total  maximum  penalty of  33 months’ imprisonment or fines of $4,000.  However, it is suggested on behalf of the appellant that this information is not helpful and completely ignores the reality of the situation and the totality principle.

[9]      Counsel notes submissions in the District Court that, after the guilty pleas were entered, the appellant accepted responsibility but claimed that he had no drug addiction issues. It was also pointed out to the sentencing Judge that the defendant had no prior convictions for drug related matters. Accordingly, it is said he was not in need of any official oversight by way of a sentence of supervision.

[10]     Before me Mr Westgate, for the appellant, contended that the District Court Judge erred here in combining a starting point of approximately 260 hours’ community work (assuming a 25 percent discount for the guilty plea) with nine months’ supervision. This he said resulted in a manifestly excessive sentence. It is

also suggested that the sentence of supervision was inappropriate, given that the

2      Criminal Procedure Act 2011, s 244.

3      Sections 247 and 250.

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

defendant had no previous convictions for drug offending and had said he needed no assistance in that regard.

[11]     In conclusion, Mr Westgate has suggested that the Judge did not apply the totality principle. The resisting charge was separate and did deserve an uplift from the drug offending.  But he contended that a total of 150 hours’ community work and no supervision would have been sufficient to achieve the relevant purposes and principles of sentencing here.

Police

[12]     In summary, Mr Bates, on behalf of the Police, submits:

(a)      Given the nature of the offending, the number of charges, and in particular the appellant’s actions when he was told he was going to be searched, it is difficult to see how a total sentence of 200 hours’ community work could be considered manifestly excessive.

(b)      On the contrary, the sentence could be considered lenient given the

overall offending and the appellant’s actions.

(c)      Although the appellant has no previous drug-related convictions, the Court could have uplifted the sentences imposed because of the appellant’s   previous   convictions,   in   particular   the   convictions involving violence and that of resisting police on a previous occasion.

[13]     Before me Mr Bates cited Zimmerman v Police as to the proper approach to an appeal pursuant to s 250 of the CPA:5

[22]     …  despite  s  250  making  no  express  reference  to  “manifestly excessive”, this principle is “well-engrained” in the court's approach to sentence appeals.6

[23]      The approach taken under the former Summary Proceedings Act was set out in R v Shipton where the Court said:7

5      Zimmerman v Police [2014] NZHC 3233 at [22]-[24].

6      Tutakangahau v R, above n 4, at [35].

7      R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].

(a)       There must be an error vitiating the lower Court's original sentencing discretion: the appeal must proceed on an “error principle.”

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.

(c)       It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[24]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

[14]     In reliance upon Zimmerman, and the authorities cited therein, the Crown submits here that the sentence imposed cannot be regarded as manifestly excessive or inappropriate.

Analysis

Manifestly excessive?

[15]     In his sentencing notes, Judge Phillips acknowledged that the appellant had “an appalling history but [that] it does not involve any other convictions under the Misuse of Drugs Act 1975”.8  However, given the serious nature and the number of drug-related offences, and the variety of drugs involved here, and considering the appellant’s actions when apprehended, I consider that it was open to the Judge to disregard the appellant’s submission to the contrary, and conclude that “there would also be drug addiction or abuse issues”.9  His Honour was entitled, then, to impose the adjunct sentence of supervision, for the clear and I believe commendable purpose of  assisting  in  the  offender’s  rehabilitation  and  reintegration.10   This  bipartite sentence   was   the   least   restrictive   outcome   that   was   appropriate   in   the

circumstances.11

8      Police v Heke, above n 1, at [4].

9 At [5].

10     Sentencing Act 2002, s 7(1)(h).

11     Section 8(g).

[16]     In my view there is no intrinsic error here capable of vitiating Judge Phillips’ sentencing decision.12  Moreover, the sentence is within the range that can properly be justified by accepted sentencing principles.13  Consequently, I conclude that this Court should not intervene in the sentence imposed.

Totality of the offending

[17]     Finally, before me Mr Westgate for the appellant submitted that the District Court Judge did not apply the totality principle here.   In my view however this suggestion is untenable. Although Judge Phillips did not expressly cite s 85 of the Sentencing Act, his Honour clearly abided by s 85(4). This provision requires that, if only concurrent sentences are imposed:

(a)       the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)each of the lesser offences must receive the penalty appropriate to that offence.

[18]     As noted above, the sentence of community work was imposed on the lead charge, possession of utensils for methamphetamine consumption, and was deemed by the Judge to cover the appellant’s overall culpability. Each of the lesser offences then received penalties  that  I consider  appropriate to  that  offence:  sentences  of

community work, to be served concurrently.14

Conclusion

[19]     In conclusion, I find that the appellant has neither shown that there has been an error in the sentence imposed, nor that a different sentence should be imposed.15

Having failed to surmount either hurdle of s 250 of the Criminal Procedure Act, the

appellant has not met the threshold for granting an appeal against sentence.

12     Zimmerman v Police, above n 5, at [23], R v Shipton, above n 7, at [138]-[140].

13     Zimmerman v Police, above n 5, at [24].

14     Police v Heke, above n 1, at [5].

15     Criminal Procedure Act, s 250.

[20]     Accordingly, this appeal is dismissed.

...................................................

Gendall J

Solicitors:

R P B Law, Dunedin

John Westgate, Dunedin